REYAZ FAROOQ Vs. STATE OF J&K AND OTHERS

JUDGEMENT

(1.) The petitioner has challenged FIR no. 33/2012, Police Station, Vigilance Organization Kashmir, in a composite petition under Section 104 of the Constitution of Jammu & Kashmir read with Section 561-A of the Code of Criminal Procedure. The gravamen of charge mainly rests on the allegations that on the basis of a complaint by Tanveer Hussain Khan (respondent no. 7), filed before Special Judge Anti-Corruption under Section 156(3) Cr.P.C., with regard to procurement of Dental Machinery on exorbitant rates by authorities of Government Dental College, Srinagar. Verification was conducted in this regard by Vigilance Organization Kashmir which was formally registered as Preliminary Verification no. 12/2012 which ultimately led to the registration of FIR No. 33/2012 under section 5(2) Jammu & Kashmir Prevention of Corruption Act Svt. 2006 (hereinafter PC Act) and 120-B in Police Station, VOK.

(2.) In terms of Government order No. 61-HME of 2008 dated 16.09.2008, Purchase Committee No. 3 came to be constituted including other Members with petitioner as its Chairman for finalizing the rate contracts of items to be purchased by the Health and Medical Education Department. It is stated that in partial modification of the aforesaid Government order, another Government order No. 137-HME of 2008 dated 20.10.2008 was issued whereby sanction came to be accorded to the inclusion of Deputy Director, Dentistry, Health Services, Kashmir/Jammu as Members of the Purchase Committee No. 3. In terms of Government Order No. 518-HME of 2012 dated 22.08.2012, the nomenclature of the Purchase Committee came to be changed to Rate Contract Committee on the premise that the said Committee, will fix the rate contract for procuring machinery items. It is stated by learned counsel for the petitioner that the aforesaid Government orders specifically provided that the Chairman of the Committee is at liberty to co-opt any other Member technical / non technical / expert in the interests of administration and patient care. It is stated in the petition that the aforesaid Committee was to undertake the process of fixing the Rate Contracts for procuring machinery and equipment (Dental) for the whole of the Jammu & Kashmir State including the Government Dental College, Srinagar, Government Dental College, Jammu, Directorate of Health Services after following the necessary codal formalities. It is stated that as a matter of standard and formal practice, before issuing any tender notice for procurement of any dental equipments or material for the Dental College, the Heads of the Departments / Experts in their respective disciplines were engaged in the process of consolidating the requisition of the items sought to be procured being the end users of these equipments / material and in the process Head of the Departments / Experts were involved, engaged and associated for consolidation of the requisitions at pre-tendering process. A copy of consolidation of specifications of the equipments and machinery sought to be procured and purchased submitted to the Rate Contract Committee duly signed by the Experts / Head of the Departments forms part of the writ record.

(3.) After the aforesaid process, Tender Notice No. 02 of 2008 dated 29.12.2008 was floated whereby sealed tenders for supply of various items detailed in Section-I, Section-II and Section-III came to be invited by the office of Purchase Committee No. 3 through its Chairman for and on behalf of the Governor of the Jammu and Kashmir State. The tender documents were to be submitted in sealed double envelopes as technical bid and financial bid as envisaged and indicated in the terms and conditions of the NIT. It is the case of the petitioner that on receipt of tender documents from various tenderers, in the first instance, technical bids were opened, examined and evaluated whereafter the financial bids of the tenderers who qualified the above technical bids were subsequently opened, examined and evaluated. It is specifically stated that the process of evaluation of both technical and financial bids, had been the exclusive role of the HODs / Experts who had made requisitions with requisite specifications, to evaluate, examine and assess the offers made strictly in tune with their requirements. As a matter of mandatory process each equipment/machinery sought to be procured was collectively scrutinized by the Expert Committee and both the technical and financial bid bears signatures of the Experts. Therefore, as per the petitioner, there was no independent decision for allotment of rate contract in isolation to the Purchase Committee. It is only after the recommendations recorded by HODs / Experts after evaluation and assessment of technical and financial bids of successful tenderers the Rate Contract Committee accepted the recommendations and consequently issued the rate contract in favour of successful tenderer which position is reflected and demonstrated by a copy of minutes of meeting.